holding that a defendant has no right to have the district court develop a record to establish the voluntariness of his decision to testify
How later courts described this case
- holding that a defendant has no right to have the district court develop a record to establish the voluntariness of his decision to testify
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0154p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1548
v.
,
>
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Defendant-Appellant. -
RAYMOND YONO,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-20479-001—Patrick J. Duggan, District Judge.
Submitted: April 23, 2010
Decided and Filed: May 28, 2010
*
Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge.
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COUNSEL
ON BRIEF: Thomas W. Jakuc, THOMAS LEGAL CENTERS, Warren, Michigan, for
Appellant. Leonid Feller, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
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OPINION
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COLE, Circuit Judge. Defendant-Appellant Raymond Yono appeals his
conviction and sentence, arguing that his right against self-incrimination was violated
when the district court failed to ensure affirmatively that he knowingly and voluntarily
chose to testify on his own behalf. We AFFIRM.
*
The Honorable R. Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
1
No. 09-1548 United States v. Yono Page 2
I. BACKGROUND
Following a jury trial, Yono was convicted of four counts of bank fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 1344 and 2; and one count of altering
an obligation to the United States and aiding and abetting, in violation of 18 U.S.C.
§§ 471 and 2. The district court sentenced him to a prison term of twenty-four months.
While Yono professed his innocence at trial, multiple witnesses testified to his
involvement in a scheme that involved depositing altered Social Security checks and
other forged checks in various banks accounts and accessing the funds.
Yono testified on his own behalf at trial, claiming that he had been the victim of
identity theft. His testimony, however, failed to explain much of the evidence against
him. And, as he notes on appeal, not only was he a “poor witness,” he also “exhibited
signs of paranoia, confusion and memory deficits.” (Br. for Defendant-Appellant
Yono 9.)
II. ANALYSIS
Yono now contends that his Fifth Amendment right against self-incrimination
was violated as a result of his testimony because the district court failed to develop a
record indicating that his decision to testify was made knowingly and voluntarily.
Yono’s claim fails because he had no right to such a district court record.
While the Sixth Circuit has not expressly addressed the issue, other courts have
found that a defendant has no right to have the district court develop a record to establish
that he has voluntarily waived his right not to testify. See Brown v. Artuz, 124 F.3d 73,
79 (2d Cir. 1997) (“[T]he trial judge need not stop a defendant called by defense counsel
to the stand and explain the right not to testify. . . .”). In fact, courts have recognized
that it is inadvisable for a district court to develop such a record because it may infringe
on the defendant’s right to testify. E.g., United States v. Pennycooke, 65 F.3d 9, 11 (3d
Cir. 1995) (“The fact that a criminal defendant, depending on the facts and
circumstances of the case, reasonably could choose either to testify or not to testify,
necessarily means the determination of whether the defendant will testify is an important
No. 09-1548 United States v. Yono Page 3
part of trial strategy best left to the defendant and counsel without the intrusion of the
trial court, as that intrusion may have the unintended effect of swaying the defendant one
way or the other.”).
We previously addressed a similar situation and came to the same conclusion.
This Court has ruled that a district court colloquy is not required to assess the
voluntariness of a defendant’s waiver of the right to testify, the corollary to the right not
to testify. United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000) (“Barring any
statements or actions from the defendant indicating disagreement with counsel or the
desire to testify, the trial court is neither required to sua sponte address a silent defendant
and inquire whether the defendant knowingly and intentionally waived the right to
testify, nor ensure that the defendant has waived the right on the record.”). Such a
colloquy, this Court recognized, might impede on a defendant’s right not to testify. Id.
at 552 (“[A] sua sponte inquiry from the trial judge regarding the defendant’s choice to
testify might impede on an appropriate defense strategy, might lead the defendant to
believe that defense counsel has been insufficient, or might inappropriately influence the
defendant to waive the Fifth Amendment right not to testify.”). Our precedent therefore
confirms the reasoning outlined above that a colloquy into the defendant’s waiver of his
right not to testify might impede the defendant’s right to testify and, therefore, not only
is not required, but is inadvisable. Id. (“[T]he right not to testify counterpoises the right
to testify, and the exercise of one is the waiver of the other. . . .” (internal quotation
marks omitted)).
Finally, even if Yono did have a right to such a record, he has not presented
sufficient evidence to suggest that his decision to testify was made unknowingly or
involuntarily.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.